Supreme Court Skepticism

Seven years and numerous lawsuits after Michigan voters agreed to bar public colleges from considering race or ethnicity in admissions decisions, the U.S. Supreme Court on Tuesday heard arguments about whether the referendum was unconstitutional. While predicting Supreme Court rulings based on oral arguments is always risky, there were no signs in the oral arguments that any of the justices who have been dubious of affirmative action were willing to reject the referendum.

In fact, those justices in their questions seemed equally dubious of the lawsuit challenging the referendum. Many of the questions seemed to embrace a view that affirmative action may be legal (under certain conditions), but so is the choice of a college or a state to use only race-neutral admissions criteria.

Technically, the case before the Supreme Court focuses not on the merits of affirmative action, but whether admissions policy on the issue can be set by a state referendum. But discussion Tuesday frequently veered into the merits of affirmative action and to the impact of state bans like the one adopted in Michigan. And college groups that favor the consideration of race have backed the challenge to the Michigan referendum.

The argument behind the lawsuit was based on legal protections of the political rights of minority groups. The argument in simplified form is that Michigan residents can use their political clout to support any number of changes in higher education policy, including admissions policy. But in amending the state's Constitution to bar the consideration of race in admissions decisions, the plaintiffs argue, they disadvantaged minority citizens who might want to have colleges consider race and ethnicity.

No measure would prevent citizens from urging their colleges to give more or less consideration to science students or those from rural areas or those who play the tuba. But citizens who want their universities from considering race are blocked from doing so -- in denial of their political rights.

Those seeking to overturn the Michigan measure favor affirmative action, and those seeking to protect the measure include many who oppose affirmative action. But the question before the court -- unlike the situation a year ago with a case about the University of Texas -- is not about the legal right of public colleges to consider race. It is about the right of states to bar such consideration.

And questions from several justices indicated that they believe colleges (and possibly state voters) have the right to do so. Chief Justice John Roberts asked what was different from a state banning affirmative action by vote or because a state board decided it did not want to continue to consider race and ethnicity.

Justice Samuel Alito picked up that theme, suggesting that all sorts of entities have the power to eliminate the consideration of race. "Let's say that the -- the decision about admissions criteria across the board is basically delegated to the faculty. All right? And the faculty adopts some sort of affirmative action plan. And now that is overruled in favor of a colorblind approach at various levels going up the ladder," Justice Alito said. "So maybe it's overruled by the -- the dean of -- by a dean, or maybe it's overruled by the president of the university. Maybe it's overruled by the regents. Maybe, if state laws allowed, it's -- it's overruled by an executive department of the state. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment. At what point does the political restructuring doctrine kick in?"

And Justice Kennedy picked upon this theme as well, asking why it could be unconstitutional for the voters to do something a faculty panel might do. "Why is -- why is the faculty administration, a faculty decision, any less outcome determinative than what the voters would say?" he asked.

Later, Roberts said: "[Y]ou could say that the whole point of something like the Equal Protection Clause is to take race off the table. Is it unreasonable for the state to say, look, race is a lightning rod. We've been told we can have affirmative action programs that do not take race into account. Socioeconomic diversity, elimination of alumnae preferences, all of these things. It is very expensive. Whenever we have a racial classification, we're immediately sued. So why don't we say we want you to do everything you can without having racial preferences."

Roberts also questioned whether those challenging the Michigan referendum could show that it was against the interests of all minority citizens. He noted, for example, "mismatch theory," which holds that some beneficiaries of affirmative action would be better off at less competitive colleges. (The theory is far from universally accepted.)

Justice Antonin Scalia seemed unlikely to reverse the Michigan amendment, rejecting a lawyer's assertion that it was a "racial classification." Scalia disagreed: "It's the prohibition of racial classifications."

While Justice Sonia Sotomayor and Justice Ruth Bader Ginsburg both asked questions suggesting sympathy for the idea of doing away with the Michigan referendum, it is unclear where they could find more votes for their position. Justice Elena Kagan has recused herself on the case, apparently because she worked on it while in the Justice Department before her court appointment.

Justice Clarence Thomas, as is his practice, did not ask any questions during the oral arguments. But because he has suggested that he believes it is unconstitutional to consider race and ethnicity in admissions, it would seem unlikely that he would block Michigan voters from reaching that conclusion.